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Email: [email protected]
Dear Mr Stewart,
2 While it is understood that the process of consultation with the ISP industry and other online groups has been an ongoing one, this important announcement was the first declaration of a Cabinet position on Internet regulation, and as such warranted a longer submission time than to the 8th August, 1997. It is appreciated that submissions are being received for a further few days, but as this response to the framework has been prepared following the meeting with Ms Kelly, Ms Koomen and yourself on the 6th August 1997 it covers matters of principle raised in the framework rather than connected issues of policy. EFA requests that another meeting be convened to discuss policy issues outside the framework prior to draft legislation being prepared, to include other issues such as :
4 Policy should give preference to :
6 ISPs are a unique modern service, founded on TCP/IP protocols and packet switching technology. The product they sell is bandwidth, which they buy wholesale from corporations protected from liability for content and sell without control as to the use of that bandwidth by customers. Sometimes they provide some content, such as a site's web page, but this is scarcely likely in a commercial environment to include any material of concern to regulators. Content continuously available online is provided by users and businesses wishing to establish a presence on the Internet who have paid the ISP to rent disk space for a certain time duration.
7 The vast majority of content is accessed from outside Australia, on the Internet it is no more inconvenient to get data from Finland than Canberra. An ISP has no control as to whether users choose to access data from overseas of any type, category or classification.
8 Many ISPs now have thousands of users, so that even the machines under their direct control contain a majority of content that is placed there under contract by users. ISPs do not have the time to view all the available content placed on their site by customers much less the flow of newsfeeds. Few ISPs have access to more information about content available than their users, caught between demands of network efficiency and user privacy.
9 It would be a preferable government policy towards legislation that first recognised that the ISP ought not to be regulated by misleading analogy with carriers, content providers, publishers, bookstores or broadcasters. There is an opportunity for the Commonwealth Government to make an informed step towards regulation of online service providers under legislation that abandons attempts to integrate ISPs into traditional publication models.
10 In July 96 Senator Alston told the INTIAA breakfast:
12 The States and Territories do not agree as to whether OFLC definitions are sufficient within their own jurisdictions, and at present there is a two-tiered censorship regime administering different standards for publications, movies and computer games :
WA
14 Regrettably, the proposed framework places the cart before the horse in seeking at paragraph 2(a) that ISPs "respect community standards in relation to material published by means of their service". This is to impose a liability for users' content provision that is entirely misplaced, and it is no comfort that the proposed "community standards" are set at the Refused Classification standard rather than at Parental Guidance standard. Far better for Commonwealth legislation to acknowledge that an ISP is only responsible for content when acting in the role of content provider - and then under the same rules applicable to any other content provider.
15 The second objective, to establish a procedure for complaints against content, follows the same fallacy. Complaints against content are misdirected if made to ISPs - only the content provider can answer them. ISPs are contractually bound to provide bandwidth and disk space irrespective of content, and are bound by laws of general application against criminal conduct. If content is illegal, the content provider has criminal culpability as the content originator but an ISP must rely on the criminal law to guide as to procedure for removing a user's contractual rights. If content is illegal, the appropriate remedy is a call to the police. If content is legal, then an ISP may be acting contrary to law in removing it and it is inconsistent with due process for a law to encourage removal of content unfairly.
16 Other legislation has suggested a "good samaritan" clause toexonerate ISPs from liability for removal of material "to be on the safe side". EFA submits that such a provision, which can be a back-door way of enforcing extra-legal content restrictions, is unnecessary if Internet regulation requires the ISPs to only remove unequivocally illegal material after written notice from the police.
17 The third objective, stated at paragraph 2(c), "to ensure that ISPs place a high priority on the protection of minors from exposure to material that may be harmful to them" invites debate over the means to that end. To keep the issue in perspective, EFA merely notes that protection of minors is not part of all ISPs' training or competence. In the event that parents or educators consider that filtering Internet content is a desirable alternative to adequately teaching minors to deal with all types of Internet content, this is only achievable with use of personal software programs and proper supervision appropriate to age and maturity. ISPs can neither hinder nor assist this process, and the emergence of specialist content providers for children will reduce the need for supervision in some cases. Minors are not all impressionable victims nor hardened hackers, and parents are better placed than ISPs to determine whether a problem exists with their child's use of the Internet. The development of a range of online services and market forces are a better means of giving parents control over their children's use of the Internet.
18 As President Clinton resolved, following the defeat of the Communications Decency Act, it is the role of the police to track down paedophiles and terrorists - and it is up to parents to supervise their child's use of the Internet.
19 As the Commonwealth Government is making an initial move into the regulation of Internet content, it is worth reflecting on the international perspective on a liberal democracy making judgments on access to a global network - at risk of imposing arbitrary restrictions that satisfy some individuals but may be seen as an abridgement of free speech by others.
20 Assuming that OFLC guidelines would be on the "publications" standard, rather than the more censorious standards for movies, videos and computer games, there is still a vast body of RC material that is available elsewhere than in Australia at absolutely no additional inconvenience to the user than if it were available on an Australian site. Much material that is classified by the OFLC (whether as a publication, movie or computer game) as Refused Classification by subject-matter routinely appears on the Internet as material legal in the USA and other countries.
21 The physical location of Internet content is a matter of little relevance. A content provider in any Australian State or Territory can have content hosted elsewhere in Australia or any other country. Realistically, to deny Australian content hosts the right to host content legal and protected elsewhere is to make Australian sites uniquely disadvantaged in a global market.
23 Similarly, paragraph 4 recommends the codification of an online service provider's obligations in relation to content, in itself a much-wanted legal statement. However, EFA recommends that the codification define an ISP as immune from civil or criminal liability for content other than that content provided by an ISP in his or her capacity as a content originator. In an Internet Act of expanded scope, the content originator should have his or her responsibility for content limited to a new class of "Internet-Illegal" material, confined to a narrow class of criminal pictorial pornography and textual material that is "directed to inciting or producing imminent lawless action and which is likely to incite or produce such action." Neither of these forms of expression are protected by the U.S. First Amendment , and are effectively banned world-wide.
24 The announcement of the framework coincided with a press release which stated that Government policy would be that what is legal "offline" would be legal "on-line". This is commendable in determining that there will be no additional content regulations applying to the Internet than those applying to other media - and should be a final answer to those who blame the Internet for the existence of material freely available in other media.
25 However, the Internet is a global network and the content is distributed, published or "available" from jurisdictions beyond the control of the Australian governments. It is what is legal "offline" in the whole world that sets the practical limits of Internet regulation.
26 It still makes sense to regulate different methods of distributing content using different laws. As the "outlet" of a global Internet is distributing international content, State and Territorial laws are misplaced and even national laws have limited application. A global regulatory model, such as that existing by international treaties against child abuse and terrorism right now sets the pragmatic levels at which Internet content providers may be effectively regulated.
27 Internet access providers need legal protection from liability for content, as it is evident that they have no practical way of acting as a State or National censor, quite apart from the risk of incurring incidental liability by ineffective filtering (as in the American "Prodigy" case).
28 The United States Congress has just commenced consideration of a bill which would exempt ISPs from liability for content. EFA submits that the Commonwealth government should enact similar legislation contemporaneously with any other law amending the liability of ISPs for content.
29 The proposed Federal law, (On-Line Copyright Liability Limitations Act, 105th Congress, 1st Session, HR2180) would make ISPs exempt from direct copyright infringement or vicarious liability actions based solely on transmitting or otherwise providing access to materials on-line. The exemption would apply if the provider:
30 It would make a pertinent impact on the perception of Commonwealth Internet regulation if the government were to confront the issue of ISP liability for all troublesome content, not merely that subject to OFLC censorship. Following Rindos v. Hardwick, it remains unclear as to whether communication on the Internet is slander or libel but it is settled that defamation proceedings may be brought by persons personally offended by online content. The liability of ISPs as a form of "publisher" unknown to lawbooks is untested. Similarly, ISPs are being threatened with legal action and claims for royalties from music copyright owners for the activities of Internet users and the use of the Internet for radio broadcasts. The liability of ISPs for copyright infringements is also a daily problem for the industry, as in the past State and Federal police raids have confiscated online service providers' equipment if software piracy by the users was alleged.
31 A minor amendment to the Crimes Act section 85ZE could establish an ISPs responsibilities in relation to use of a telecommunications service, or the matter could be enacted in a new Internet Act.
33 OFLC guidelines to date ban material by subject-matter, which is logical in the context of guidelines referring only to text, pictures, video or interactive games, but causes great difficulties with the Internet since online content can be any, and any combination, of these. Even a universally-condemned subject-matter such as child pornography can include material of mixed classification and mixed harm. The reasons for banning child pornography are to protect children and deter perpetrators, not to criminalise every incidence of the subject-matter.
34 "Child pornography", as an RC classification would include :
35 The other area of RC material is the criminalisation of text thought to incite or instruct in matters of crime. In this area, access to the variety of material on the Internet may include access to material that would not be a suitable subject for a book or a movie, but may be harmless in context. For example, bans on books teaching burglary techniques should not also ban a lockmaker's web site providing information to locksmiths.
36 In Australia, the OFLC's decision on the Rabelais article leading to a conviction for publication of Refused Classification material is a dangerous precedent for the OFLC's entry into Internet classification. There are many books banned in Australia ( such as "E is for Ecstasy" or "Steal This Book" ) which are legal in most other English-speaking countries, and to automatically classify contentious material of this sort as RC on the Internet would lead to absurd prosecutions.
37 EFA submits that Justice Merkel's decision in Brown and anors. v. OFLC, to the extent that it may represent Australian law, is a matter for law reform by the Commonwealth. It could not be considered a reasonable position for the RC classification to extend to matters outside the Brandenburg v. Ohio definition:
39 There is no need for the ABA to deal with complaints against ISPs concerning content or breaches of the BSA, if a sensible decision is made by the Commonwealth to indemnify ISPs against liability for content. By legislating also upon the obligations of content providers, the Commonwealth can establish procedures for easily establishing whether content is legal or illegal.
40 All commentators accept that there is some Internet content that is universally condemned, and some consider international efforts to eradicate it are capable of success . The precise definition of this content in a new Internet-Illegal guideline statement would be the appropriate response by an Australian government intent on making a effective contribution to dealing with criminal content. Obviously, the narrowest definitions of illegal content are most likely to be successfully prohibited - a wide definition that includes material routinely available in other countries and protected as free speech in the United States would be pointless and unenforceable.
41 ISPs should be entirely indemnified against content provided by another, simply because every censorship law of every other medium is directed against the content provider, not the supplier of the medium.
42 Paragraph 8 comes very close to this position, but the reference to paragraph 24(a) makes the paragraph a nullity. By making it a Federal offence for an ISP to "knowingly allow" a person to publish material that :
43 In the event that the Government is determined to criminalise an ISP who knows that a user is providing or obtaining illegal material, rather than prosecute the content provider, at least the content must be defined with a precision greater than vague guidelines for publications, movies or computer games. EFA submits that the only material that can be plausibly prohibited is that which is prosecuted in the USA and in all major countries - specifically authentic child abuse images and text which is criminal under laws of general application ( for example death threats or terrorist conspiracy).
44 EFA urges the Commonwealth government to rethink paragraph 9, which leaves to the States and Territories the task of determining liability for content published or obtained by content originators or end users. Enormous jurisdictional problems flow from such a decision ... a Perth user may place content on a Sydney-based ISP's system which happens to store that content in Melbourne wherefrom it is accessed by a user in Tasmania. It is obvious that national laws fail to regulate all Internet content, and regional governments are less able to make an impact on the type of material available. There is also a real danger that one rogue State could ban MA-rated material, criminalising every Australian Internet user ; or that an effective national policy will be slow to develop when States-rights rivalries prolong the process towards consensus.
45 It would only take one State or Territory to drive all Australian ISPs, users and content providers off-shore - and this, EFA submits, is a poor environment for a national policy encouraging the information technology industries to expand into an export market. What benefit for Australia is there in local industries having to move between States or even go overseas ?
46 EFA submits that Internet regulation is beyond the jurisdiction of State and Territory governments, and that consensus is too unlikely to be achieved to be the basis of content regulation. It is time for the Federal government to recognise that Internet content is primarily an international issue, and only limited regulation is possible even at a national level. A multiplicity of content classifications around Australia would be a burden on the development of Internet businesses and would result in differing rights of free speech on the Internet depending on State or Territory - in the view of EFA an unacceptable outcome.
48 To define an online service, as paragraphs 13 and 14 do, as one which makes content accessible by means of an interactive telecommunications network is to simplify many complex and varied network interactions. "Making content accessible" clearly intends to cover all transactions from "push" to "pull", many of which have differing concerns. Realistically, community standards demand a tighter control of unsolicited content than content obtained by consenting adults. One reading of paragraph 14 would suggest that "one to many" online content providers are exempt from any form of Commonwealth regulation, again giving rise to varying content originator legislation in each State or Territory as an impediment to a national Internet policy.
49 Paragraphs 14 to 18 would need to be redrafted in the alternative to the "three-pronged" model for regulation submitted above. Equally, the definition of "content" in paragraph 19 does not have relevance to an ISP perspective - to an ISP "content" is data packets measured by quantity. The nature of the data is irrelevant. Also, by not recognising that content includes private email, closed mailing lists and progressively more public communications using a variety of Internet tools and protocols, the proposals foreshadow content regulation which fails to differentiate between communications of varying degrees of privacy and consent on the part of the participants, and varying degrees of detection and control on the part of the ISP.
50 Privacy is a key issue. The example has been often given of what an ISP should do if told there is contentious material on his or her site. If the complaint is directed against private communications, the ISP is taking a risk of causing great offence to the user if the allegation is false - since by the time the ISP has determined the complaint is false the user's privacy has been breached. For this reason, written legal notice by a competant law enforcement official is the standard requirement of an ISP told to remove material.
51 Paragraph 20 is an example of a good clause misapplied. In any regulation of online service providers, a class of exceptions may be called for. However, the puzzling exemptions for voice or fax services ignores that such services are capable of being integrated into general network operations through encryption ; or that an intranet exemption invites members-only club services to develop. Despite the consequential damage to the notion that Internet regulation is to protect children, the realities of ISP obligations and ability to control content require that serious consideration be given to exempting instead large-scale educational and community sites such as universities, schools, libraries and information centres on the grounds of expense to the public purse.
52 It may be that cybercafes require separate consideration, as sectors of the ISP industry that can provide instant Internet accounts for limited duration may become the preferred means of accessing email or casual web browsing.
53 Paragraphs 21 to 23 follow the BSA, with the likely flow-on that the ABA will be required to promote and to make determinations based on community standards - a charter inconsistent with the other role of the ABA in developing with industry a Code of Practice that is genuinely self-regulatory. A query arises as to whether the ABA would find it necessary to pre-label material accessible on online services catering for children, as is the case with television, and if so at whose cost.
54 Paragraph 24(a) has been criticised above for permitting "lowest common denominator" censorship, whereby the rating rules of the most censorious State or Territory becomes the national standard. This is contrary to the rights of citizens of other States and Territories, and virtually irrelevant to the content available on a global network. The remainder of the paragraph lacks specific detail - what are to be the OFLC guidelines for Internet content, what are to be the offences in States and Territories, what rules will be made by the ABA from time to time. It is too uncertain to be anything but chilling to free speech - leaving content providers uncertain whether their content is illegal, leaving ISPs uncertain as to their legal standing and encouraging ISPs to remove legal content "just to be on the safe side". No doubt content providers, users and ISPs will consider moving offshore in the same spirit of doubt, and it is certain that Internet sites will be established to promote and incite the use of offshore facilities.
55 Paragraph 25 sets the scene for the means by which "self-regulation" is to occur - the use of the ABA as the Commonwealth Internet Censor. The ABA is to have the power to make up the rules as it goes along, directing the industry to develop codes of practice or have a code written for them, to disallow any industry code it doesn't like until, by paragraph 30, it gets the industry code it wants and excludes all others. It is widely known in the Australian Internet community that there are several industry groups with Codes of Practice in place, and each should have the right to be registered if they comply with minimum standards established by legislation. A "one industry code" policy actively encourages the ABA to choose the Code developed by the Internet industry group that most promotes the ABA's notions of "community standards", irrespective of the support that particular code has within the industry. EFA cannot support legislation which has the consequence of directing a body charged with the duty to promote community standards on the Internet to choose a single industry code among many, as this must inevitably lead to the most censorious of codes being thus chosen.
56 Equally, although the industry is unanimously of the view that ISPs cannot be responsible for filtering content, pressure from censorious groups within the community will tend to require the ABA to support the industry code that requires the most active ISP screening of content. This would lead to nonsense "best endeavours" like censoring whole domains, censoring newsgroups by title or crippling the tools used to access the Internet. The proposed framework invites censorship of the Internet to proceed by stealth, with the ABA in the background licencing ISPs under draconian Codes of Practice under threat of criminal sanctions and network disconnection.
57 The steady progression of ABA powers over ISPs detailed in paragraphs 31 to 34 are not adequately mitigated by the requirement at paragraph 35 to invite public comment prior to making new standards.
58 The particular matters to be included in Codes of Practice include matters specifically rejected in existing Codes of Practice developed by WAIA and SAIA - namely the requirements to remove potential RC content if requested to do so by anyone and to dob in other ISPs. The obligations to require content providers to rate "adult" material under as-yet undefined OFLC guidelines, age-verification procedures, accepting complaints about legal material, advice on software filters and guides to State and Federal law for content originators are extremely burdensome, and seem designed to discourage small ISPs. Many ISPs will be prepared to offer advice to users voluntarily and as a value-added service ... but not all ISPs can afford a one-stop help desk.
59 Age-verification is not a viable ISP obligation, as evidence in the CDA case established. Software filters are a promising, but at this stage unreliable technology. To encourage the use of such technology is to hope for a technical solution when parental supervision is the only certain solution.(It is highly arguable that as filter software is not effective against all controversial content, a better way for parents to deal with their child's use of the Internet is to instead use a program such as NetSnitch, which does not block sites but instead merely produces a list of webpages visited for later examination.)
60 The presence of the catch-all clause 36(h), that Codes will include "such other matters relating to online content as are of concern to the community " is very troubling, an invitation to political interference and knee-jerk censorship. As there is no "community" identified, and none that is relevant to the global Internet, it must be that this clause is designed to introduce by regulation new categories of censorship and ISP regulation without requiring public scrutiny and debate.
61 Paragraph 37 maintains the regulation of ISPs under two Commonwealth Acts and 8 regional laws, and should be replaced under an integrated Internet Act.
63 By the same token, paragraphs 43 to 45 make the ABA the judge, jury and executioner in the event of an alleged breach of one of its (by now extensive) rules. It is unclear what additional powers the ABA would need to have to deal with the situation where the ISP immediately relocates to another country, or uses non-standard protocols for tunnelling data through other ISPs.
64 Unless the ABA has an administrative role designed around the registration of genuine industry Codes of Practice, it will suffer in all its roles from the perception that its principal function is to shut down sites that show contentious material.
65 To close down a site because of the actions of one user, or a dispute about content with the site owner, is a harsh measure when one considers that emerging Net-based businesses may rely on constant service. It could be akin to the police shutting a shopping centre because of the actions of one shop. To the skilled evader of Net regulation, the powers of the ABA to shut down a site will be of little threat, but national and international businesses may wish to manage transactions under a safer environment.
66 The KGB was unable to close down Internet sites under Communism. It is unlikely that the ABA will prove to be more ruthlessly effective. However, the power of Government to close a printing press is not a power to be enacted casually or used under ill-defined guidelines. The ABA does not require this power to register and administer the industry Codes or do research into the Internet.
67 Paragraphs 46 and 47 give the ABA a charter and a bureaucracy only required if "self-regulation" is to be a term of art, in reality meaning "self-censorship at the point of a gun". It is impossible to reconcile the Ministerial emphasis on cooperation with the industry when all the work done by online groups towards developing genuine industry Codes of Practice is to be swept aside by a paternalist ABA wielding total power over ISP licences, conditions of continued business and content censorship.
68 Content regulation of the Internet should be left to the police, leaving the ABA with a role in relation to industry issues and education of the community.
70 The other would be to have an integrated Internet Act providing the following :
Kimberley Heitman, B.Juris Llb,
Chair, Electronic Frontiers Australia
10th August 1997